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Cato’s Tim Lynch runs down the history of jury nullification, then argues that while the new New Hampshire law isn’t perfect, it is a good start.

This is definitely a step forward for advocates of jury trial. Allowing counsel to speak directly to the jury about this subject is something that is not allowed in all the courthouses outside of New Hampshire–so, again, this is good. I am concerned, however, that this language does not go far enough. We don’t know how much pressure trial judges will exert on defense counsel. As noted above, if the attorney’s argument is “too strenuous,” the judge may reprimand the attorney in some way or deliver his own strenuous instruction about how the jurors must ultimately accept the law as described by the court, notthe defense. I’m also afraid what the jurors hear will too often depend on the particular judge and, then, what that judge wants to do in a particular case.

It’s great that there was enough support in the legislature to move on this bill and for the governor to sign it. However, some of that support, I fear, may be because of a wink and nod that “nothing is really going to change–so go ahead and support the measure.” I hope I’m wrong about that. Continued vigilance will be necessary in New Hampshire.

The reform that I favor is a law that would require . . . [an] instruction to be delivered by the trial court–upon the request of the defense.

Here’s the language Lynch would use, which is one that was once used in some state courts:

It is presumed that juries are the best judges of fact. Accordingly, you are the sole judges of true facts in the case.

I think it requires no explanation, however, that judges are presumed to be the best judges of the law. Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.

The order in which the instructions are given is no indication of their relative importance. You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.

These principles are intended to help you in reaching a fair result in this case. You should give them due respect. Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have seen proven. You should do just that if, by doing so, you can do justice in this case.

Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances. Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.

Exercise your judgment without passion or prejudice, but with honesty and understanding. Give respectful regard to my statements of the law for what help they may be in arriving at a conscientious determination of justice in this case. That is your highest duty as a public body and as officers of this court.

While researching my book, I’ve been reading up on the early criminal justice system in America. I knew nullification was common practice in the early courts, but I’ve been surprised to learn that not only was it common, it was expected. That is, for much of America’s early history, it was just assumed that juries would nullify bad laws—or unjust application of good laws—and that assumption was built into the way the courts operated. Acquittal rates were also much higher than they are today. Surprisingly, this is true even of slaves tried for crimes in southern courts. (Whether a slave accused of a crime was lucky enough to get a day in court is another matter.)

Of course, the country is much different now. But it has changed in ways that make the doctrine of jury nullification more important. We have a much more complicated, vague, and confusing criminal code now. A huge percentage the felonies prosecuted today are for consensual crimes. Conspiracy, racketeering, and money laundering laws enable prosecutors to take multiple bites from the same apple, from multiple angles. That improves the odds of winning a conviction on something. And that of course gives them another tool—the power to pile on charges in order to force a plea agreement. Which means that in 90+ percent of the felony convictions in America today, the government never needs to bother proving its case.

Jury nullification more important than its ever been. And the power is still there. There’s little a judge can do about a jury that returns an acquittal based on their assessment of the justness of the law, rather than the facts of the case before them. But as regular readers of this site are well aware by now, prosecutors and judges screen any prospective juror who has even heard of the term.

Even if states don’t want to pass a law as proactive as New Hampshire’s, a law forbidding questioning prospective jurors about nullification—or at least forbidding their removal because they know of or support the idea—would be a good start.

It’s good that lawmakers are at least thinking about this issue, though. I hope we see more laws like the one New Hampshire.

This entry was posted
on Saturday, June 30th, 2012 at 10:00 am by Radley Balko
and is filed under General Criminal Justice.
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I think a key point that’s often missed in 99% of “jury nullification” discussions is that in most cases so-called “jury nullification” is actually a consequence of juries upholding the law, rather than upending it. For example, if a jury would determine that the sentence for the defendant’s statutory crime would constitute cruel and unusual punishment for the particular actions of the defendant, given the defendant’s particular level of criminal intent, a jury would be duty-bound BY THE SUPREME LAW OF THE LAND to ensure that such a sentence would not be carried out. Note that such determinations may be highly dependent upon judgments of things like witness credibility–judgments that a defendant has a right to have made BY THE JURY.

All that having been said, one thing I would like to see would be a means by which the defense or prosecution could put factual questions before the jury and have them answered on the record. Jurors would be expected to make a reasonable effort to reach consensus, but would not be absolutely required to do so. Such factual questions could be relevant during sentencing and during appeal. For example, if a defendant asks a jury whether imposing a sentence of more than six months would constitute “cruel and unusual punishment”, and a jury unanimously indicates that it would, that would absolutely bar any judge from imposing any sentence longer than that, and would also mean that the defendant would not be deemed as having committed any crime for which the maximum sentence was more than six months. If because of minimum-sentencing rules the only way the judge could avoid sentencing the defendant for longer than six months would be to dismiss the charges, a judge would be duty-bound to do so.

The factual determinations may also be relevant on appeal. At present, even if a defendant successfully gets an appellate judge to throw out certain evidence, the defendant still faces an uphill battle trying to convince the appellate judge that a jury would have found differently had it not received the illegitimate evidence. In many cases, appellate judges are loath to authorize a retrial if it’s possible, but not certain, that the evidence affected the outcome of the case. While the wrongful admission of evidence which had no effect on the jury should not necessarily warrant a retrial, the appellate judge should not be the one saying whether such evidence had an effect or not. Instead, the defense should be able to ask the jury whether they would have convicted absent certain evidence. If the jury unanimously agrees that they would have, then a showing on appeal that the evidence was wrongfully admitted should not warrant a retrial. On the other hand, if the jury unanimously agrees that they would not have, then such a showing on appeal should be grounds for immediate acquittal. If the jury is not unanimous, then such non-unanimity should show that the evidence would be sufficiently likely to have had an effect that a retrial would be warranted.

One more parting note: I forget whether it was a Supreme Court ruling or an appellate court ruling which was denied cert at the Supreme Court, but some court ruled that judges were allowed to make factual determinations at sentencing meaning e.g. (though I don’t think this was the fact at issue in the decided case) if the sentence for a particular crime was 5 years unless the defendant possessed a machine gun, or 20 years if he did, the factual determination of whether the evidence that the defendant possessed a machine gun was credible could be made by the sentencing judge, rather than a jury. I consider such a notion illegitimate (though it would be countered if the defendant could ask the jury to make such a factual determination itself, on the record). If such principle is allowed to hold, states could render juries meaningless. Simply charge someone with “doing something illegal”, the penalty for which could range from a $5 fine to 50 years without parole. Let the jury simply determine whether the defendant did anything illegal, and let the judge decide what he did and how it should be punished. Since the prosecution would usually be able to show that a defendant did at least something worthy of a $5 fine, prosecutions would be a slam-dunk.

I’d like to thank every person, politician and political organization that made this happen. The struggle for informed juries has been going on for over 10 years in NH. Finally, in 2010, the legislators able to deliver a bill to the Governor’s desk were elected. They did their job and delivered the bill. Governor Lynch did his job and signed the bill.

Thank you to NH Representative Lars Christiansen for submitting the bill. Thank you Republican State Delegates for making sure the bill is part of the NH GOP Platform. Thank you Speaker O’Brien for supporting the bill in the House. Thank you Governor Lynch for signing the bill.

This bill only passed the Senate because of the dedication of pro-liberty lawyers, Ron Paul supporters, Free State Project participants and Senator Jim Forsythe. Thank you, thank you, thank you!

I think that’s a great step but beware there’s an obvious argument, one that usually involves charges of racism: the greatest use of jury nullification in the 20th Century was in the South to get white lynchers off, including those that killed Freedom Marchers.

The argument, at it’s most moronic level, is that if it can be abused, and obviously has been, it shouldn’t be allowed. Think “free speech or press”.

Jury nullification didn’t just “get white lynchers off”. The white lynchers were the enforcement arm of the system of racial oppression, they could operate because they knew no jury would ever convict them. Jury nullification was therefore central to the entire system of racial oppression, it was the enabling technology.

This is the problem I have with jury nullification and prosecutorial and police discretion. It seems to me more often than not they become systems of oppression- by allowing onerous laws to exist because they are only applied to the powerless minority. Drug laws are an obvious example- Cops only get away with seizing property because, by and large, seizures are only applied to brown people.

How long do you think “stop and frisk” would last if it were applied evenly to the white citizens of new york?

Pass a law and apply it evenly, to everyone – its the only way of making sure the law itself is just.

KBCraig – “I can see 12 pairs of eyes glazing over before the end of the first sentence.”

That was exactly my thought on it. Good grief, can’t you just give it some good old plain English? Not a bunch of dense legalese. There’s no way that would have any effect on almost any jury without some further explanation. They won’t even hear it. And so it’s extremely unlikely to make a difference.

crzyb0b #12 – yes, what happened in the South is a “problem” with jury nullification (a counterpoint is that it was used in the 1850s to acquit people who violated the Fugitive Slave Act). But keep in mind that jury nullification will always exist whether or not juries are fully informed: because of the right to trial-by-jury and the protection against double jeopardy, if a jury says not guilty there’s nothing you can do. And I’m certain that nullification in the south would have happened whether or not those juries were fully informed: there was just no way any jury would convict those lynchers. I really don’t know how you’re supposed to deal with a place that was as rotten to the core as it was in the South at that time.

That said, outside a time/place as bad as that, I would expect fully informed juries to *help* minorities. You have situations where the defendant is not a popular person in the community, so the jury is going to prioritize doing their duty as a jury ahead of helping some poor shmuck. They’ll convict if they think they have to, even if it leaves a bad feeling in their stomach. (Juries are often instructed in STRONG terms that if they find that the defendant did a certain thing, they MUST return a guilty verdict.) If they’re informed that it’s their right/duty to also judge the law and its application, they’ll be more likely to acquit in these situations.

“Pass a law and make it apply to everyone”. Ignoring the fact that the rich and powerful – *cough* Corzine *cough* – have been doing as they damn well pleased for millennia, while those charged with “applying the law” tugged their forelocks and pocketed their cash-stuffed envelopes.

But hey, maybe we could pass a law outlawing litter and war and discouraging words! On the big rock candy mountain, where the unicorns crap gold doubloons!!

You’ve laid out an argument against the criminal justice system, not against jury nullification.

As others have pointed out, nullification was used to acquit those who worked on the underground railroad. It was also used widely during prohibition.

It was also a way around the 19th century laws that allowed husbands to beat their wives. Particularly in northern cities, wives who killed abusive husbands had acquittal rates approaching 80 percent, despite the fact that self-defense laws required the wives to be in immediate danger. (This of course was well before an abused wife had options other than to stay in the marriage and take the abuse.)

The mere fact that a tool can be used for nefarious purposes doesn’t mean the tool itself is a problem.

#6 | karl | “supercat #4: Do juries know the penalties for the crimes they are deciding? I’m under the impression that they usually don’t.”

In many states, the defense is expressly forbidden from informing juries of the sentences that would result from a conviction, on the basis that such information is supposedly “irrelevant”. i would aver that such information is withheld not because it’s irrelevant, but because prosecutors know it’s VERY RELEVANT, and would often lead to acquittals.

Indeed, I would suggest that while it is proper to place severe limitations on the evidence and arguments that the state is allowed to bring at trial, the primary limitation on the defense should be a requirement that the state be allowed a chance to vet any evidence the defense introduces (without such a requirement, it would be easy for a defense to produce at trial evidence which, though phony, would seem to absolutely prove innocence and would take a little while to disprove).

There is, of course, also the question of how much time the defense should be allowed to present its case. To my mind, that should in some measure depend upon the jury. If the jury feels that the defense is wasting time (or, alternatively, thinks the prosecution’s case is so weak that they’re ready to acquit) it should be allowed to deliberate. The jury may, after deliberating, decide they want to acquit, that they want to hear more, or that they want to give the defendant one last chance to get to the point. If after having given the defendant one last chance (some length of time) to get to the point, the jury concludes that he’s unlikely to offer anything of value, it may convict.

Incidentally, it might be good to allow the defense to poll the jury as to whether it thought the prosecution’s case was going anywhere. If the defendant has three days worth of evidence that would solidly prove innocence, but the prosecution’s case was so weak the jury would have acquitted without it, why waste three days of everyone’s time and cost the defense an extra three days’ legal fees?

#17 | Radley Balko | “The mere fact that a tool can be used for nefarious purposes doesn’t mean the tool itself is a problem.”

Especially when attempts to curtail use of the tool will often prevent its use for good, but facilitate its use for evil.

I suspect that an unwillingness of the people in some areas to prosecute those who harmed blacks was probably a generalization of people’s unwillingness to prosecute those who harm people they regard as not being proper members of their society. I don’t think juries were necessarily more likely to acquit those who harmed blacks than those who harmed other “outsiders”. To be sure, in many regions, blacks were probably more likely than non-blacks to be viewed as outsiders, but there were probably many places where strangers of any stripe would be strongly cautioned to keep a low profile unless they knew someone local who would come to their defense if needed.

The proper solution to racism should have lied not in forced integration, but rather in the development of ties between people of different races. A white businessman comes to town with a black partner whom he regards as his equal, may take great offense at any disrespect shown to his partner. Further, even if the businessman and his partner are not traveling together at any given moment, the white businessman may regard any attack on his black partner as an attack on him. Townspeople who might think nothing of attacking a “black man” might have to worry about whether that man might have someone else covering his back.

Free association doesn’t always lead to a perfect world by any means, but it provides people with incentives to go in the right direction. By contrast, telling a business or town “you must accept Blacks” sends the message that one must be willing to accept behavior from Blacks which would not be acceptable from Whites, lest one be accused of being “racist”. Worse, it gives Blacks the message that they don’t have to conform to “White” social norms. The net effect is that rather than leading to a colorblind society, forced integration may end up reinforcing rather than erasing differences in how people behave.

“It was also a way around the 19th century laws that allowed husbands to beat their wives.”

Wait, what? The last I heard, historically the laws in the usa about spouse-beating have, if anything, specifically *criminalized* such behavior. And that’s going all the way back to the *17th* century, IIRC.

So now I’m curious and want to know what your sources for that claim are. Cites, I think, or it didn’t happen.